Abstract

Policymakers and scholars alike are struggling with the federalism question: whether climate change regulation should flow from a global, national, state, or local level. This Article provides theoretical and practical justifications for a cooperative federalist approach that strives to avoid the weaknesses and build on the strengths of each level of government. It argues that federal minimum standards and programs are essential to avoid the collective action challenges faced at the state level. Nonetheless, the article details the states' critical role within a federal structure in light of the pervasive local impacts of climate change, the significant political, economic, and environmental implications of alternative regulatory approaches, the local nature of many potential climate change strategies, and the institutional peril or relying on a single level of government.

I then provide specific proposals for federal legislation. I discuss federal emission reduction goals and standards, and argue that federal law generally should not preempt more stringent state standards. I then argue that, if a federal cap-and-trade program is adopted, the states should have the option of controlling in-state trades so that the states' efforts to exceed federal minimums are not undermined and to give states control over the pervasive economic and environmental consequences of trading programs. I further argue that some form of state implementation planning would prompt the states to address critical areas, like land use and transportation, that have historically been under state control, and would knit together the combination of state and federal efforts necessary to achieve the nation's goals.

Kaswan, Alice, A Cooperative Federalism Proposal for Climate Legislation: The Value of State Autonomy in a Federal System. Denver University Law Review, Vol. 85, No. 4, 2008; Univ. of San Francisco Law Research Paper No. 2009-10. Available at SSRN: https://ssrn.com/abstract=1125127